Citation Nr: 0014211
Decision Date: 05/31/00 Archive Date: 06/05/00
DOCKET NO. 98-01 441 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUE
Entitlement to an initial rating greater than 70 percent for
post-traumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
L. M. Rogers, Associate Counsel
INTRODUCTION
The veteran had active military service from December 1967 to
November 1969 and from December 1969 to June 1972.
This matter comes to the Board of Veterans' Appeals (Board)
from an August 1997 rating decision of the Department of
Veterans Affairs (VA) Los Angeles, California Regional Office
(RO), which, inter alia, granted service connection for PTSD
and assigned a disability rating of 10 percent, effective
February 20, 1997. The veteran perfected an appeal of the
August 1997 decision.
The Board notes that in a September 1998 rating action, the
veteran's disability evaluation for PTSD was increased from a
10 percent rating to a 70 percent rating, effective February
1997. A total rating based on individual unemployability was
granted, effective February 1997, in a rating decision in May
1999.
The current schedular award is less than the maximum
evaluation available and consequently the issue remains in
appellate status. See AB v. Brown, 6 Vet. App. 35, 38
(1993).
REMAND
The Board finds the veteran's claim for increased
compensation benefits for PTSD is well-grounded, meaning
plausible, and based on a review of the file, there is a
further VA duty to assist him in developing the facts
pertinent to that claim. See 38 U.S.C.A. § 5107(a) (West
1991 & Supp. 1999); 38 C.F.R. § 3.159 (1999); Proscelle v.
Derwinski, 2 Vet.App. 629, 631- 32 (1992); Epps v. Brown, 9
Vet. App. 341 (1996), aff'd , 126 F.3d 1464 (Fed.Cir. 1997),
cert. denied, 118 S.Ct. 2348(1998).
The most recent VA psychiatric examination was conducted in
May 1997. Since that period of time numerous VA outpatient
treatment records, statements from VA psychiatrists, and
private psychiatrists show that the veteran's PTSD disorder
has increased in severity. The Board finds that the veteran
should be afforded a VA psychiatric examination for the
purpose of determining the nature and severity of his
service-connected PTSD prior to appellate disposition of this
appeal.
The U.S. Court of Veterans Appeals (Court) has ruled that the
fulfillment of the statutory duty to assist includes the
conduct of a thorough and contemporaneous medical
examination, one which takes into account the records of
prior medical treatment, so that the evaluation of the
claimed disability will be a fully-informed one. Green v.
Derwinski, 1 Vet.App. 121 (1991).
In addition, in an October 1998 Form 9, the veteran indicated
that he did not want to appear before a member of the Board.
However, in a November 1998 statement the veteran requested a
personal hearing to address the issue of an increased
evaluation for PTSD. It is a basic principle of veterans'
law that the Board shall decide an appeal only after
affording the claimant an opportunity for a hearing. 38
U.S.C.A. § 7104 (West 1991 & Supp. 1999). Pursuant to 38
C.F.R. § 20.700 (1999), a hearing on appeal before the Board
will be granted if an appellant expresses a desire to appear
in person.
Generally, if further evidence or clarification of the
evidence or correction of a procedural defect is essential
for a proper appellate decision, the Board shall remand the
case to the agency of original jurisdiction, specifying the
action to be undertaken. 38 C.F.R. § 19.9 (1999).
Accordingly, further appellate consideration will be deferred
and the case is REMANDED to the RO for the following
development:
1. The veteran should be notified in
writing and asked to clarify whether or
not he has a desire to appear in person
before a representative of the RO or a
member of the Board sitting at the RO.
If the veteran desires a personal
hearing, the veteran should be scheduled
to appear before the RO or a member of
the Board as soon as it may be feasible.
2. The veteran should be requested to
identify all sources of recent treatment
received for his PTSD, and to furnish
signed authorizations for release to the
VA of medical records in connection with
each non-VA source he identifies.
Copies of the medical records from all
sources he identifies, including VA
records, (not already in the claims
folder), should then be requested. All
records obtained should be added to the
claims folder.
3. The RO should then schedule the
veteran for a special VA examination by a
psychiatrist to determine the nature and
extent of his PTSD. The veteran should
be asked to provide information
concerning his recent social and work
experience. All necessary tests and
studies should be accomplished, and all
clinical manifestations should be
reported in detail. The examiner should
report a multi-axial diagnosis,
identifying all current psychiatric
disorders, and offer an opinion of the
extent to which the veteran's service-
connected psychiatric disorder results in
social and occupational impairment.
A complete rationale for any opinion
expressed must be provided. The examiner
should indicate the veteran's overall
psychological, social, and occupational
functioning using the Global Assessment
of Functioning scale provided in the
Diagnostic and Statistical Manual of
Mental Disorders. The claims file,
including a copy of this REMAND, should
be made available to the examiner before
the examination, for proper review of the
medical history. The examination report
is to reflect whether such a review of
the claims file was made.
4. The RO should then review the claims
file to ensure that the above requested
development has been completed. In
particular, the RO should ensure that
the requested examination and opinion
are in complete compliance with the
directives of this remand and, if they
are not, the RO should take corrective
action. See Stegall v. West, 11 Vet.
App. 268 (1998).
5. In the event that any benefit sought
is not granted, the veteran and his
representative should be furnished with
a Supplemental Statement of the Case and
be given the opportunity to respond.
The case should then be returned to the Board, if in order.
The Board intimates no opinion as to the ultimate outcome of
this case. The appellant has the right to submit additional
evidence and argument on the matter or matters the Board has
remanded to the regional office. Kutscherousky v. West, 12
Vet. App. 369 (1999).
The veteran is hereby placed on notice that pursuant to
38 C.F.R. § 3.655 (1999) failure to attend a scheduled VA
examination may result in an adverse determination. See
Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims (known as the United States Court
of Veterans Appeals prior to March 1, 1999) for additional
development or other appropriate action must be handled in an
expeditious manner. See The Veterans' Benefits Improvements
Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658
(1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and38.02-38.03.
WAYNE M. BRAEUER
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1999).